Montana man unjustly convicted of violating Clean Water Act

The Environmental Protection Agency and the U.S. Army Corps of Engineers prosecuted Joe Robertson for allegedly polluting waters of the United States as a result of a series of ponds he built on land above the small town of Basin, Montana. The prosecution turned on a definition of “waters of the United States” that included land 40 miles away from the nearest navigable river. A jury agreed with this definition, finding the ponds had a “significant nexus” to the river, and convicted Robertson. PLF has asked the U.S. Supreme Court to overturn Robertson’s conviction.

Case Status

Active:
Litigation is ongoing

What’s at stake?

The federal government does not have the power to regulate the use of every drop of water in the nation.

The human community is the essential primary interest to be protected by government action and we must ensure that environmental laws do not undermine fundamental human needs and rights.

Case Overview

Robertson v. United States

Joe Robertson, a 77-year-old Navy veteran in Montana, was prosecuted for violating the Clean Water Act by discharging dredge and fill material into wetlands. He argued that he could not have violated the Clean Water Act because the waters he “discharged” into were ponds he constructed near his home, with no continuous surface water connection to navigable waterways. The nearest navigable river is 40 miles away. He was convicted and sentenced to 18 months in prison, probation, and ordered to pay $130,000 in restitution. Whether this conviction was lawful depends on the definition of “navigable waters.”

In Rapanos v. United States (a PLF case), the Supreme Court sought to define the scope of the Clean Water Act. The Court split on a 4-1-4 vote. Since then, the lower courts have struggled to determine which of those opinions controls the question whether wetlands are “navigable waters.” Justice Kennedy’s concurrence in Rapanos would extend federal jurisdiction to any water that has a “significant nexus” to a traditional navigable water, even in the absence of a direct hydrological connection. That overly broad reading of the Clean Water Act allowed the federal government to prosecute Mr. Robertson for “polluting” waters of the United States by creating ponds to protect his property from fire.

On the other hand, the Rapanos plurality opinion written by Justice Scalia, would authorize federal regulation of only those wetlands physically abutting and indistinguishable from natural rivers, lakes, and streams connected to a traditional navigable waterway. Under the Scalia test, Robertson would have been found not guilty (if charged at all), since the ponds are more than 40 miles away from the river, and do not abut lakes or streams. PLF has asked the U.S. Supreme Court to overturn Robertson’s conviction.

The Agua Caliente tribe resides on a federal reservation that consists of a patchwork of parcels throughout California’s Coachella Valley. The tribe runs several commercial enterprises on the land, including casinos, hotels, and the like. Under California law, the tribe shares rights to the valley’s groundwater with other cities, water agencies, and individuals whose property overlies the water. Under the federal reservation of water rights doctrine, however, whenever the federal government withdraws land from the public domain (for an Indian reservation or national forest) it impliedly reserves the right to sufficient water to fulfill the purpose of the law withdrawal.

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